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2020 DIGILAW 264 (UTT)

Ram Avatar Jindal v. Manav Bharti School, Masoorie & Angels Hills Dehradun

2020-07-01

LOK PAL SINGH

body2020
JUDGMENT Lok Pal Singh, J. - Instant civil revision, preferred under section 115 of CPC, is directed against the order dated 11.10.2019 passed by 1st Additional Civil Judge (S.D.), Dehradun in O.S. No.82 of 2014, whereby the application filed by the respondents/defendants under Order VI Rule 17 of CPC has been allowed. 2. Factual matrix of the case is that the plaintiff/revisionist filed a suit for decree of mandatory injunction, cancellation of sale deed and lease deed against the respondents/defendants. The respondents/defendants contested the suit and filed the written statement. The trial court fixed the suit for 05.07.2017 for framing of issues. However, on the said date, the respondent/defendants moved an application under Order VI Rule 17 of CPC read with Section 151 CPC seeking certain amendments in the written statement. Revisionist/plaintiff filed his objections to the amendment application. After hearing the learned counsel for the parties, the trial court, by the order impugned, allowed the amendment application with costs of Rs. 1,000/-. While doing so, the trial court recorded finding that the amendment sought by the defendant is formal in nature and does not change the nature of suit and it also does not cause any prejudice to the plaintiff. 3. I have heard learned counsel for the revisionist and perused the entire material brought on record. 4. Learned counsel for the revisionist/plaintiff would submit that while allowing the amendment application the trial court has not considered the fact that the amendment application has been filed by the respondents/defendants at a belated stage and allowing the same would led to start the trial de novo. He would further submit that the defendant has set up a new case and has claimed title over the property and has taken inconsistence and contradictory pleas. He would further submit that the trial court has allowed the amendment in a very casual manner. To buttress his arguments, he would place reliance on a decision of Hon'ble Apex Court rendered in the case of Revajeetu Builders and Devlopers vs. Narayanaswamy & Sons & others, (2009) 10 SCC 84 . He would refer to paragraphs 63 and 64, which read as under:- "63. To buttress his arguments, he would place reliance on a decision of Hon'ble Apex Court rendered in the case of Revajeetu Builders and Devlopers vs. Narayanaswamy & Sons & others, (2009) 10 SCC 84 . He would refer to paragraphs 63 and 64, which read as under:- "63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bonafide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive. 64. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments." 5. Before any discussion, it would be apt to discuss Order VI Rule 17 of C.P.C., which is as follows:- "17. Amendment of Pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." 6. A perusal of provision of Order VI Rule 17 of CPC makes it clear that the Court is conferred with the power to allow the amendment of the pleadings at any stage of the proceedings, if the Court is of the view that such amendment is necessary for the purpose of determine the real questions in controversy between the parties and to do the substantial justice. However, proviso appended to Rule 17 puts an embargo that no application for amendment shall be allowed after the trial has commenced, however, it has been left upon the Court to order for permitting the party to amend pleading on being satisfied that in spite of due diligence the parties could not have raised the matter before the commencement of trial. It is settled proposition in law that the amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in a larger interest to do the substantial justice to the parties before the Court. It is also well settled that the courts should be extremely liberal in allowing the amendment in written statement than that of a plaint and that inconsistent pleas or even an alternative case of defence can be raised by the defendants in the written statement which otherwise is not permissible in the case of plaint. 7. The jurisdiction of this Court under Section 115 of CPC and under Article 227 of The Constitution of India is akin to each other. In Raj Kumar Bhatia vs. Subhash Chander Bhatia,2018 2 SC 87 , the Hon'ble Apex Court has held that where trial court in the considered exercise of its jurisdiction under Order VI Rule 17 CPC has allowed amendment of written statement, interference with that order by High Court under Article 227 entering upon merits of the case sought to be set up by appellant-defendant in amendment, is impermissible. Paragraphs 7 and 12 of the said judgment are relevant, which are reproduced as under:- "7. The High Court has held that the amendment sought in the written statement was not bona fide and was not necessary for determining the real question in controversy between the parties. The suit was instituted in 2001 and the written statement was filed in 2003. The High Court has held that the amendment sought in the written statement was not bona fide and was not necessary for determining the real question in controversy between the parties. The suit was instituted in 2001 and the written statement was filed in 2003. The High Court held that based on the facts which were known to the appellant in 2003, a belated attempt was made thirteen years later in 2016 to amend the written statement to introduce an averment on the existence of coparacenary/Hindu undivided property. On merits, the High Court held that it is a settled principle that after the enactment of the Hindu Succession Act, 1956, property which devolves on an individual from a paternal ancestor does not become HUF property but the inheritance is in the nature of self-acquired property unless an HUF exists at the time of the devolution. This view was based on the judgments of this Court in CWT v. Chander Sen and Yudhister v. Ashok Kumar. In the view of the High Court, the averments sought to be introduced by the appellant do not lead to a conclusion of the existence of coparcenary property. While accepting that in the course of considering an application for amendment, its merits and demerits should not be evaluated, the High Court nevertheless held that the amendment in the present case was untenable on merits. 12. This being the position, the case which was sought to be set up in the proposed amendment was an elaboration of what was stated in the written statement. The High Court has in the exercise of its jurisdiction under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the appellant in the amendment. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction under Article 227. In Sadhna Lodh v National Insurance Company (2003) 3 SCC 524 , this Court has held that the supervisory jurisdiction conferred on the High Court under Article 227 is confined only to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction. In Sadhna Lodh v National Insurance Company (2003) 3 SCC 524 , this Court has held that the supervisory jurisdiction conferred on the High Court under Article 227 is confined only to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction. In the exercise of its jurisdiction under Article 227, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or tribunal has passed an order. The Trial Court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under Order 6 Rule 17 of the CPC. There was no reason for the High Court to interfere under Article 227. Allowing the amendment would not amount to the withdrawal of an admission contained in the written statement (as submitted by the respondent) since the amendment sought to elaborate upon an existing defence. It would also be necessary to note that it was on 21-9-2013 that an amendment of the plaint was allowed by the Trial Court, following which the appellant had filed a written statement to the amended plaint incorporating its defence. The amendment would cause no prejudice to the Plaintiff. 13. In the view which we have taken, it has not become necessary to consider the alternative submission of the appellant namely, that recourse taken to the jurisdiction under Article 227 by the respondent after filing an application for review before the Trial Court was misconceived. Since the matter has been argued on merits, we have dealt with the rival submissions. 13 Hence, on a conspectus of the facts and having due regard to the nature of the jurisdiction under Article 227 which the High Court purported to exercise, we have come to the conclusion that the impugned judgment and order is unsustainable. We accordingly allow the appeal and set aside the judgment of the High Court. The order passed by the Trial Court allowing the amendment of the written statement is accordingly affirmed." 8. Hon'ble Apex Court in Usha Balashaheb Swami & Ors. vs. Kiran Appaso Swami & Ors., (2007) AIR SC 1663 has held as under:- "18. It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. Hon'ble Apex Court in Usha Balashaheb Swami & Ors. vs. Kiran Appaso Swami & Ors., (2007) AIR SC 1663 has held as under:- "18. It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable. 19. Such being the settled law, we must hold that in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case [see B.K. Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712 ) and Baldev Singh & Ors. v. Manohar Singh, (2006) 6 SCC 498 ] . Even the decision relied on by the plaintiff in Modi Spinning (supra) clearly recognises that inconsistent pleas can be taken in the pleadings. In this context, we may also refer to the decision of this Court in Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (Dead), (1995) Supp3 SCC 179]. In that case, the defendant had initially taken up the stand that he was a joint tenant along with others. Subsequently, he submitted that he was a licensee for monetary consideration who was deemed to be a tenant as per the provisions of Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This Court held that the defendant could have validly taken such an inconsistent defence. Subsequently, he submitted that he was a licensee for monetary consideration who was deemed to be a tenant as per the provisions of Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This Court held that the defendant could have validly taken such an inconsistent defence. While allowing the amendment of the written statement, this Court observed in Basavan Jaggu Dhobi's case (supra) as follows :- "As regards the first contention, we are afraid that the courts below have gone wrong in holding that it is not open to the defendant to amend his statement under Order 6 Rule 17 CPC by taking a contrary stand than was stated originally in the written statement. This is opposed to the settled law open to a defendant to take even contrary stands or contradictory stands, the cause of action is not in any manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action." 20. As we have already noted herein earlier that in allowing the amendment of the written statement a liberal approach is a general view when admittedly in the event of allowing the amendment the other party can be compensated in money. Technicality of law should not be permitted to hamper the Courts in the administration of justice between the parties. In the case of L.J. Leach and Co. Ltd. v. Jardine Skinner and Co., (1957) AIR SC 357] , this Court observed "that the Courts are more generous in allowing amendment of the written statement as the question of prejudice is less likely to operate in that event". In that case this Court also held "that the defendant has right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to serious injustice." 9. Reverting to the facts of the present case, a perusal of amendment application would reveal that the amendment sought is explanatory in nature and it does not change the nature of the defence as well as nor does it cause any prejudice to the revisionist/plaintiff. Furthermore, trial has not commenced as yet inasmuch as issues have not been framed. Reverting to the facts of the present case, a perusal of amendment application would reveal that the amendment sought is explanatory in nature and it does not change the nature of the defence as well as nor does it cause any prejudice to the revisionist/plaintiff. Furthermore, trial has not commenced as yet inasmuch as issues have not been framed. Insofar as the ruling cited by learned counsel for the revisionist is concerned, the same is of no help to the revisionist/plaintiff, rather it strengthens the case of the respondents/defendants. 10. Thus, in view of proposition of law laid down by Hon'ble Apex Court in Usha Balashaheb (supra), I am of the considered view that trial court has not committed any error in allowing the amendment application filed by the respondents/defendants. This being the position, revision is liable to be dismissed. 11. Accordingly, civil revision is dismissed. Impugned order dated 11.10.2019 passed by 1st Additional Civil Judge (S.D.), Dehradun in O.S. No.82 of 2014, allowing the amendment application, is upheld.